The Law Offices of Lawrence D. Rohlfing has represented the disabled since 1985 before the Social Security Administration, District Courts across the country, Circuit Courts of Appeal, and the United States Supreme Court.
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Friday, November 7, 2014

In this blog, I answer the questions that did not get the attention and time in a 60 minutes ethics presentation. The list of questions illustrate that we ranged from submission of adverse evidence, to fee sharing, to use of contract associates, and nuts and bolts aspects of the practice of when to sign the form 1696. I hope that those that attended, listened, or just read the materials from the NOSSCR conference find these materials helpful. Session
Report

Generated on November 6, 2014

Social Q&A

8upvotes

Is the payment of
referral fees permissible in Social Security Matters?

Should I advise my
client of the ALJ's approval rate before the hearing?

The attorney owes a duty of fidelity to
his/her client. If telling the client falls into that fidelity, then
yes. I don’t look them up and don’t
care what an ALJ approval rating is.
It doesn’t make a different to me how much an ALJ pays when I am
presenting my case.

7upvotes

Can you make your
power point available to us?

I will see if I can make it available.

6upvotes

In the Medical Records
class yesterday, he said that submitting records electronically is against
HIPPA rules because they are not encripted. Now what?

Is the use of encryption mandatory in the Security Rule?

No.
The final Security Rule made the use of encryption an addressable
implementation specification. See 45 CFR § 164.312(a)(2)(iv) and (e)(2)(ii).
The encryption implementation specification is addressable, and must
therefore be implemented if, after a risk assessment, the entity has
determined that the specification is a reasonable and appropriate safeguard
in its risk management of the confidentiality, integrity and availability of
e-PHI. If the entity decides that the addressable implementation
specification is not reasonable and appropriate, it must document that
determination and implement an equivalent alternative measure, presuming that
the alternative is reasonable and appropriate. If the standard can otherwise
be met, the covered entity may choose to not implement the implementation
specification or any equivalent alternative measure and document the
rationale for this decision.

Payment of $600 to
local counsel to attend hearing, with consent, 1696, but no Alj approval of
$600, ethical to take $600?

If the person received a fee for
representing a claimant before the Social Security Administration and that
person does not have an authorization to charge and receive a fee, then the
payment and the receipt violates 42 U.S.C. § 406(a) and the regulations.

5upvotes

So, are you saying
that a representative cannot do a contract hearing for another law office, if
they are expecting to be paid?

Agency policy states:

Contains the exceptions to the fee
authorization process:

The
claimant and any affected auxiliary beneficiaries are free of direct or
indirect liability to pay a fee or expenses, either in whole or in part,
to a representative or to someone else, AND-

The
third-party entity that actually pays the representative's fee and
expenses, is a business, firm, association, partnership, corporation,
for-profit or not-for-profit organization, or a government agency that
is paying from its own funds, AND-

The
representative submits to us a form SSA-1696-U4 (or a written statement)
waiving the right to charge and collect a fee and any expenses from the
claimant and affected auxiliaries, if any, in the form and manner
described below:

Complete
Part III of the SSA-1696-U4 by checking the box “Waiving fees and
expenses from the claimant and any auxiliary beneficiaries” and
providing signature and date, or

Submit
a written statement that clearly and unequivocally states that the
representative intends to receive a fee from a third-party entity and
that the claimant and any auxiliary beneficiary are not directly or
indirectly responsible for payment of the fee; and if eligible for
direct payment, or

Prior attorney says
she will withdraw and waive. My fee approved and directly paid. Can I pay prior
attorney knowing she will not file fee petition?

No.
The person misrepresents the waiver of fees to the agency and the
claimant and also receives an unauthorized fee.

4upvotes

Non-attorney reps
have no "attorney/client priviledge" or "attorney work
product" privilege; right?

See 79 Fed. Reg. 9663 (Feb. 20, 2014). The regulations treat communications with a
non-attorney representative the same as with an attorney. If the communication would have gained the
privilege with an attorney, that communication gains that privilege in this
context. ACUS advocated as such. The “why” is a much longer
explanation.

4upvotes

We have three atty's
can we put all three names on the 1696. Because we don't know which will do
the actual hearing?

The agency prefers that representatives use
multiple form 1696, one for each representative. While it may be easier to have the client
sign one with all names, it is not impractical to have the client sign three.

4upvotes

If we have a certain
CE and he says 70% of people are malingering and had a history of yelling at
the mentally ill which often causes them to decompensate , should I advise my
client?

The proclivity of a physician does not
animate the discussion. The advice is
simple: be honest and forthright with
the physician and cooperate fully. No
one expects the conversation to be private, the doctor intends to repeat
anything said.

4upvotes

In your example
about the adverse medical source statement, the fact that MD met with client
and completed form will be in the chart notes. ALJ asks about this at
hearing. How respond when form not in record? ;

If a party in litigation wishes to withhold
evidence as privileged, that withholding is never a secret. It is part of a privilege log. Withholding privileged information does not
imply secrecy. Even if the provider
did not record the completion of the form, a direct question asking if that
provider completed a form requires the honest answer, yes. Then litigate the privilege.

3upvotes

Is it ethical to
have a client sign a blank 1696 and then allow the firm to put whatever
representative on file that they choose? The top line of the 1696 states the
firm's name, but there is no representative name. A copy of that is kept on
file and then just add whatever representative (EDPNA, atty, hearing rep,
etc) is needed at the time.

Who did the client appoint when signing the
form 1696? Can the firm designate any
person of any experience at whim and business considerations? SSA requires that the claimant appoint a
person. The agency considers the
appointment to have occurred on the date that the claimant signed the form
1696. Filling in the form later with a
new name defeats the purpose of the appointment process.

Can an atty pay a
contract associate a flat, non contingent $200 to write an AC memo, plus a
$100 bonus if the memo gets an AC remand? Further, if the admin atty wins
benefits at the remand hearing, may he pay the contract associate 10% of the
406a fee? The contract assoc is not on the 1696.

Dealing with California rules, your
jurisdiction may vary.

The circumstance described uses the phrase
“contract associate” – not a term used in these discussions. If the person is truly a member of the
firm, either an employee or a principal, then the financial arrangements
described meet the ethical considerations.

If the “contract associate” is not a member
of the firm, then the ethical considerations come into play.

The key rests in disclosure and consent of
the client. But the agency sits in
parens patriae to the claimant to protect the claimant against the
representative. Therefore, SSA must
also receive both disclosure and consent to the fee splitting.

The ABA Model Rule 1.5(e) provides for a
similar result:

(e) A division of a fee between lawyers who
are not in the same firm may be made only if:

(1) the division is in proportion to the
services performed by each lawyer or each lawyer assumes joint responsibility
for the representation;

(2) the client agrees to the arrangement,
including the share each lawyer will receive, and the agreement is confirmed
in writing; and

(3) the total fee is reasonable.

Disclosure and consent are required. Under the California ethics rule, paying a
contract attorney a flat fee regardless of the outcome and/or receipt of
payment might be permissible but not a payment based on any contingency. That requires disclosure and consent.

3upvotes

I am admin attorney
on unfavorable decision from ALJ and AC and case goes up to federal court and
remanded back from FDC. Other atty does FDC case. I play no part in the FDC
case. At remand hearing we win. There are 406b fees and FDC atty wants to
give me 50% of 406b fees. I've already received $6000 fee. Can I take 50% of
406b?

See the answer to the prior question. Disclosure and consent of the client. Here, the Court sits in parens patriae on
behalf of the plaintiff and the attorneys.

Note, in jurisdictions that permit sharing
of disclosed and consented fees that bear a relatioinship to the proportion
of the services performed, this may run afoul of ABA Model Rule
1.5(e)(1). In jurisdictions that
permit referral or association fees without regard to proportion of the
services rendered, this is more likely to meet muster. Again, disclosure and consent.

3upvotes

Is having the
outsourced rep check the 3rd box at the bottom of the 1696 (waiving fees from
the claimant, but charging a 3rd party) enough to meet your ethical
obligations?

Agency policy states:

Contains the exceptions to the fee authorization process:

The claimant and any affected auxiliary beneficiaries are free of direct or indirect liability to pay a fee or expenses, either in whole or in part, to a representative or to someone else, AND-

The third-party entity that actually pays the representative's fee and expenses, is a business, firm, association, partnership, corporation, for-profit or not-for-profit organization, or a government agency that is paying from its own funds, AND-

The representative submits to us a form SSA-1696-U4 (or a written statement) waiving the right to charge and collect a fee and any expenses from the claimant and affected auxiliaries, if any, in the form and manner described below:

Complete Part III of the SSA-1696-U4 by checking the box “Waiving fees and expenses from the claimant and any auxiliary beneficiaries” and providing signature and date, or

Submit a written statement that clearly and unequivocally states that the representative intends to receive a fee from a third-party entity and that the claimant and any auxiliary beneficiary are not directly or indirectly responsible for payment of the fee; and if eligible for direct payment, or

If the criteria of agency policy are met,
then the waiver accompanied by a statement that a third party will pay the
fees will more likely pass muster. The
problem is whether the claimant has any direct or indirect obligation to pay
any fee for any expenses to any person in connection with the claim.

2upvotes

Moderator, would you
please just take 10 min right now to systematically go through this list of questions,
in order, so we can figure out where you are, and read the questions clearly
and precisely while talking into the microphone?

Sorry, too late.

2upvotes

I may h ave missed
the response to wheter or not you can pay a referral fee.